Shellfish harvesting in Boundary Bay - Governing Transboundary Waters: Canada, the United States, and Indigenous Communities - page 110

shellfish legally in Boundary or Semiahmoo Bays. The administrative decision to
uphold a blanket closure rather than conduct ongoing tests affects everyone
interested in harvesting. However, this decision has disproportionate impacts on
Indigenous communities such as the Semiahmoo First Nation.
Framing this issue in terms of environmental justice helps to crystallize the links
between contamination events, the lack of institutional capacity and fiscal priority
to conduct ongoing routine water quality testing, and the restricted access to a
food source integral to diverse senses of well-being within Indigenous communities.
Thus, the government's decision to render the Bay “incalculable” has considerable
political effects on local Indigenous communities.
This chapter asserts that the inability of the Semiahmoo First Nation to harvest
“legally” - both due to environmental degradation of the waters and the lack of
ongoing water quality tests - is a form of ecocolonization. This injustice is further
complicated at the site of the border, where the divergent right to harvest shellfish
comes down to which side of the border family members ended up on during
relocation of families to reserves. To the members of these communities, the
provincial government's lack of financial priority to test the waters appears to be
extremely unjust.
Shellfish harvesting: Washington, United States
The contaminated tidelands of Boundary Bay also threaten the tradition of shellfish
harvesting in the U.S. However, because of significant clean-up efforts on the U.S.
side of the bay (and a willingness by the State to routinely test), Drayton Harbor
has been open for conditional use in Washington State since 2004. This means
that certain groups, including Indigenous groups and licensed commercial harvesters,
are able to harvest when environmental conditions are deemed safe.
In the U.S., the legal right that Washington State Coast Salish people have to
harvest shellfish lies within a series of treaties signed with representatives of the
federal government in the 1850s. These treaties recognized legal rights for western
Washington tribes to access fish in all usual and accustomed grounds (NWIFC,
2010). These treaties represent a negotiation between the newcomer and the
Indigenous communities, and a political structure imposed on communities with
established governance systems. Since shellfish are considered fish within the
meaning of treaties, they fall under the same rights as other fish such as salmon
(Boxberger, 1989).
Therefore, federally recognized tribes in the U.S. such as the Lummi are legally
able to harvest shellfish for sustenance and cultural purposes in their usual and
accustomed areas (Boxberger, 1989, 1993). These rights were upheld by U.S.
District Judge George Boldt, who interpreted “in common with” to mean “sharing
equally the opportunity to take fish . . .” between treaty and non-treaty fisherpeople.
A central aspect of the Boldt decision in the context of Boundary Bay is not only
the fixed allocation, but also the right of the tribes to manage their share (Boxberger,
1989). Although harvesting has reopened conditionally for federally recognized
tribes in Washington State, the Indigenous communities remain impacted by the